Ct.
Cases 32392017
RAJAN PAUL Vs. M/S KELTECH INFRASTRUCTURE LTD
03.01.2024.
Argued by.: Sh. Dalip Kumar, Ld. Counsel for the complainant.
Sh. Neeraj K Singh, Ld. Counsel for the accused.
The matter is fixed for orders on sentence. Ld. Counsel for the
complainant has argued that the matter is pending since 2017. Therefore, the accused
should be fined with double the cheque amount and the same should be awarded in
compensation in the favour of complainant. He further submitted that the conduct of
complainant has been very good throughout the trial. In case the court does not award
double the cheque amount, the accused should be awarded with maximum
punishment under NI Act. He argued that there is no mitigating factor favoring the
accused. It was submitted that the accused has been convicted in other cases as well
and the court shall take a strict view considering the facts of the present case.
Ld. Counsel for the convict has submitted that the primary object of
Section 138 NI Act is compensatory and that the offence is quasi criminal in nature. It
was submitted that the court may double the amount of fine but the substantive
sentence is not warranted by Section 138 NI Act.
Moving on the quantum of sentence prescribed u/s 138 NI Act is up to
two years or with fine which may extend to twice the amount or with both. The nature
of offence u/s 138 is a mixture of Civil and Criminal liability. The Hon'ble Apex
Court has observed that the object behind the provision is primarily compensatory
with the punitive element been mainly with the object of enforcing the compensatory
element (Metres and Instruments Pvt. Ltd. Vs. Kanchan Mehta 2018) 1 SCC 560.
With respect to direction to pay compensation, the amount of compensation can be
fixed having regard to the extent of loss suffered by the action of accused as accessed
by the court. Further, the direction to pay compensation can be enforced by
imposition of default sentence (R. Mohan Vs. AK Vijaya Kumar, (2012) 8 SCC
721, Para 29).
Therefore, the object behind section 138 NI Act is primarily
compensatory in nature. AS per the facts of the case, the complainant booked a flat
from the accused firm which was not delivered to the firm and the assured return was
also not given. In case the court does not award any substantive sentence in the
present matter, it might send a wrong message in the society that a builder who did
not deliver the flats to the home buyers has not been proportionately punished.
Further, it is pertinent to note here that while purchasing flat either as residence or as
investment, a person spends his entire life savings and hence the court is of the view
that the accused cannot be punished only with mere fine. Accordingly, the accused is
sentenced to imprisonment of three months. The sentence shall run concurrently.
The amount of cheques in the present case is Rs. 17.99 lakhs. In the
light of aforesaid discussion and seeing the facts and circumstances of the present
case, the convict is sentenced with a fine of Rs. 35 lakhs/. The entire amount shall
be payable as compensation to the complainant within 90 days. It is further directed
that in the event of failure to pay the compensation amount as ordered above, the
convict shall undergo simple imprisonment for a period of 6 months as sentence in
default. The compensation amount if not paid within time shall be recoverable as fine
u/s 421 Cr.P.C RW 431 Cr.P.C. The accused is burdened with a cost of Rs. 20,000/
to be paid to the complainant in addition to fine imposed above towards pleaders fees
and compensation and for nonpayment of costs imposed during the trial. The costs
shall also be recoverable as fine.
It is ordered accordingly, copy of the order on sentence be given to
the convict free of cost.
[Karanbir Singh]
MM04 NI ACT /(West)/Delhi
03.01.2024.
